Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

[Brett Sokolow <>]

I think this is scrambling Clery and Title IX in unhelpful ways.  See if this helps at all.  

WHO IS A MANDATED REPORTER, OF WHAT?  -- GETTING SOME CLARITY

BY:  BRETT A. SOKOLOW, ESQ., EXECUTIVE DIRECTOR, ATIXA (www.atixa.org)

 

One of the most frequent questions we receive at ATIXA is about the sexual misconduct reporting responsibilities of campus employees, especially faculty members.  The question is complicated by the fact that three federal laws each impact this duty differently. 

 

The Clery Act

Imposes duty to report incidents in 15 different crime categories (including sex offenses) by all “campus security authorities,” defined as officials who have significant responsibility for student and campus activities.  That is a broad requirement, including coaches, RAs, student affairs administrators, housing/residential life, andmany other offices and departments.  It will also include faculty members who have significant responsibility, defined as doing more than teach, such as advising student organizations, coordinating extern and internships, mentoring programs, etc.  Counselors, health service providers and clergy are voluntary reporters under the Clery Act, not mandated.  No personally identifiable information needs to be shared by the reporter to satisfy this requirement.  It is a real-time reporting requirement where you share information on incidents with Public Safety as soon as you know about the incident. 

 

Title VII

 

Because the law can impose liability on employers for sexual harassment by employees, colleges tend to impose duties to report broadly, either on all employees, or at least on all supervisory employees. Some faculty members will become mandated to report, therefore, by virtue of their supervisor status. 

 

Title IX

Title IXuses the concept of notice, and imposes obligations for a “prompt and effective remedy” on colleges and universities when notice of sex/gender discrimination or harassment is given to a “responsible employee.”  A school has notice if a responsible employeeknew, or in the exercise of reasonable care should have known, about the harassment. A responsible employee includes any employee who has the authority to take action to redress the harassment, who has the duty to report sexualharassment to appropriate school officials, or an individual who a student could reasonably believe has this authority or responsibility.  Your college or university will define for you if you are a “responsible employee.”  Some faculty members will be, and some will not.

 

Your duties to report may vary based on the law, the situation andyour role.  Here are some guidelines:

• To make it easier to know what you need to do, our campus has a blanket mandated reporting responsibility on all employees.  If you know about sexual harassment, discrimination or sexual assault, we need to know what you know. 
• Who you need to share this information with will vary from campus to campus, but your supervisor and the Title IX Coordinator are typically good resources. 
• When you report, you may be able to initially withhold personally identifiable information (the name of the victim, the name of the accused individual, and other identifying details about witnesses, location, etc.), in cases where the alleged victim is hesitant to have a formal report made and you are not a “responsible employee” under Title IX, as described above.  If you are unsure, consult your supervisor.
•  Subsequently, campus officials may need additional information from you, but the goal is to empower the victim, to push one domino over at a time, and maintain some control over the process for the victim.
• Faculty members do not have a special privilege or ability to maintain the confidentiality of reports shared with them, and should not promise confidentiality.  

WHAT HAPPENS ONCE YOU HAVE NOTICE?  

In all instances where you have notice (and Clara is right, the identity of the perp and location is notice, though I don't see a need to scramble IP addressed under Title IX at all — we're not required to seek notice which is why anonymous reporting systems are very workable), an investigation is required.  Initially, that will be a small "i", preliminary investigation. In the small i, we might look into patterns, repeat perpetration, violent tendencies, etc., without disempowering a victim or taking away control over the process.  The task is to essentially confirm that it is responsible to honor a victim’s request for no action or to determine what action to take if the victim desires a formal response.   I think we always conduct the little i investigation, but only conduct the big I full formal investigation when we have the victim’s consent, or we feel an obligation to act to protect our community. I also want us to consider that the legal duties imposed on colleges by Title IX are not our only duties.  Warning and protecting from foreseeable harm are duties on colleges imposed by state negligence laws.  So, Title IX is not the whole story here.

 

Some university counsel and coordinators are overreacting to the DCL, though, such as imposing mandated reporting on RAs for all information they have.  That will create a chilling effect on reporting.  One of the biggest misunderstandings is that conducting the big I investigation requires the involvement of the victim.  Whenever we can, I advise that if we MUST pursue a big I investigation without the victim’s consent, we do everything in our power to minimize her (or his) entanglement, and take action to protect from retaliation.  Often, our ability to address the conduct and implement remedies does not implicate a formal conduct process, or require that we drag the victim into the role of complainant in that process.  Another misunderstanding is chasing down notice, by pursuing every rumor or anonymous report to ascertain more.  That’s not what constructive notice means, and our duties to act only commence upon actual or constructive notice to a responsible employee. 

Regards,

Brett A. Sokolow
Brett A. Sokolow, Esq.
Attorney-at-Law

Chair, The NCHERM Group (www.thenchermgroup.org)

Managing Partner, The National Center for Higher Education Risk Management (www.ncherm.org)

Executive Director, The National Behavioral Intervention Team Association (www.nabita.org)

Executive Director, The Association of Title IX Administrators (www.atixa.org)

20 Callery Way 
Malvern, PA 19355-2969
Tel. (610) 993-0229 
Fax (610) 993-0228


"Best Practices for Campus Health and Safety"
NCHERM serves as legal counsel/advisor to 30 campuses

 

From: Clara Porter <>
Date: Wed, 2 May 2012 11:27:01 -0500
To: Rebecca Lewis Alexander <>, "" <>
Subject: Re: Anonymous/Confidential Reporting

If the university has the name of the perpetrator and the location of the crime then certainly the university would be "on notice" and have an obligation to report and investigate the crime.  In setting up this kind of system you definitely want to be sure to instal an IP scrambler so that there is no way to track who made the report.  If you do not have one then the university may be obligated to track down the reporting party!  Yikes.

 

 

Clara Porter, Coordinator

Interpersonal Violence Prevention

University of Southern Maine

112 Upton Hall, Gorham

780-4218 office

232-0484 cell

>>> "Alexander, Rebecca Lewis" <> 5/1/2012 4:35 PM >>>

Hello, All,

 

We are revising our Sexual Misconduct policy and are interested in implementing an option for either confidential or anonymous reporting of sexual misconduct through a public safety website.  The question that arose is this:  “under Clary, is there a mandate to report if the perpetrator is named (in the confidential/anonymous report)”?

 

Anyone have any feedback on this topic?  Also, if anyone has any input regarding their experience with this type of reporting, it would also be appreciated.

 

Thanks so much,

Rebecca

 

Rebecca Alexander, LMFT

Counselor, OASIS Program Coordinator

East Tennessee State University

DP Culp Center, Rm 345

Johnson City TN  37614

423-439-4841